P. v. Hamburg

Filed 8/23/07 P. v. Hamburg CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Michael Wayne Hamburg (Hamburg) appeals from a judgment of conviction and sentence entered after he pled no contest to unlawful sexual intercourse with a minor more than three years his younger. (Pen. Code, 261.5, subd. (c).)^[1] He seeks to set aside his no contest plea on the ground that it was induced by the misrepresentation that he could appeal the denial of his motion to suppress statements he made to the police. Respondent agrees that the case should be remanded to provide Hamburg the opportunity to withdraw his plea. We reverse the judgment and remand the matter for proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

An information charged Hamburg with two counts of lewd and lascivious acts upon a 15-year-old at least 10 years younger than Hamburg ( 288, subd. (c)(1)), unlawful sexual intercourse with a minor more than three years younger than Hamburg ( 261.5, subd. (c)), and oral copulation of a person under the age of 16 ( 288a, subd. (b)(2)). It was further alleged that he had served a prior prison term. ( 667.5, subd. (b).) Hamburg pled not guilty and denied the allegations.

On July 24, 2006, Hamburg moved to suppress evidence of statements he made while in police custody. He contended that his statements were involuntary, because they were given only after the officers handcuffed him, placed on him what he believed to be electrodes, and pointed at him a cattle prod type of device or a device for controlling the electrodes, placing him in fear that he was going to be electrically tortured. Defense counsel argued the motion as follows: Sergeant Watson . . . took [a] cattle prod off the wall or took what [Hamburg] thought was . . . a cattle prod . . . and swung it at [Hamburg] in such a way that [he] felt threatened by it and then made statements to confirm that he might well feel threatened by it. It was immediately after that that [Hamburg] changed his story [and admitted sexual assault allegations]. He changed [his account of the incidents] in exactly the way that had been suggested to him by Sergeant Watson. I think it was clear that this was not a product of [Hamburgs] own free will. Although the motion was based on the involuntariness of his statements and was not denominated a motion to suppress under section 1538.5, minute orders referred to it as a 1538.5 Motion. The motion was denied.

On July 25, 2006, Hamburg entered into a written negotiated plea agreement in which he acknowledged and waived his constitutional rights and agreed to enter a plea of no contest to count two ( 261.5, subd. (c)) and admit a prior prison term ( 667.5, subd. (b)), in exchange for incentives including a three-year state prison sentence, the dismissal of the other charges, and reservation of a right to appeal 1538.5 denial.

On August 14, 2006, the court confirmed Hamburgs waiver of his constitutional rights and accepted his plea of no contest to a violation of section 261.5, subdivision (c) and admission of a prior prison term. The remaining counts were dismissed. The following exchange then occurred: THE COURT: Were there any other promises made to you, other than what I have just recited on the record? [] [HAMBURG]: Well, leaving open a chance to appeal the motion that was denied me. [] THE COURT: The suppression motion? [] [HAMBURG]: Yes. [] THE COURT: You know, I dont know that we discussed that. [] [DEFENSE COUNSEL]: I sort of remember that we did. [] THE COURT: Its not on the waiver form, and I dont remember any discussions about that -- well, wait a minute. You put on the waiver form, Reserve the right to appeal the 1538.5 motion, so that is on the waiver. [] Do you have any problem with that? [] [PROSECUTOR]: No. [] THE COURT: All right. Anything else, sir? [] [HAMBURG]: No, sir.

On September 12, 2006, the court sentenced Hamburg in accordance with the plea agreement to three years in state prison, based on the two-year midterm for unlawful sexual acts with a minor ( 261.5, subd. (c)) and a one year enhancement for the prior prison term ( 667.5, subd. (b)).

Hamburg filed a notice of appeal, stating the appeal was based on the denial of a motion to suppress evidence under Penal Code section 1538.5.

Appellate counsel subsequently filed in this court a request to construe a proposed statement of reasonable grounds for appeal as timely filed under the constructive filing doctrine. Counsel explained that Hamburgs motion in the trial court was to suppress statements on the ground of involuntariness, not a motion to suppress under section 1538.5. Because the denial of a motion to suppress involuntary statements is not appealable, the appeal should have been taken to challenge the validity of the plea, which was based in part on the representation that Hamburg could appeal from the denial of his suppression motion. Acknowledging that a challenge to the validity of a plea requires a certificate of probable cause ( 1237.5) that was never obtained, counsel further requested that we presume contemporaneous issuance of the necessary certificate. Respondent did not oppose counsels requests, and we granted them. (Cal. Rules of Ct., rule 8.54(c).)

II. DISCUSSION
Hamburg contends that his plea was induced by a promise that he could appeal the denial of his motion to suppress his custodial statements. Contending that the denial of his motion is actually not appealable as a matter of law, Hamburg argues that his plea was improperly induced and he should be given an opportunity to withdraw his plea. Respondent agrees, as do we.

According to his written plea agreement and statements at the plea hearing, Hamburg entered his no contest plea with the understanding that he could appeal the denial of his motion to suppress his custodial statements as involuntary. Although the suppression motion had at times been referred to as a section 1538.5 motion, it was in fact based on the ground that the statements were involuntary under the Fifth and Fourteenth Amendments to the United States Constitution, and not on any Fourth Amendment claim. A section 1538.5 motion can raise only search and seizure claims under the Fourth Amendment, not a claim that a statement was given involuntarily under the Fifth Amendment. (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 733-734.)

The denial of a section 1538.5 motion is cognizable on appeal after a guilty plea. ( 1538.5, subd. (m).) However, the denial of a motion to suppress a statement as involuntary is not cognizable on appeal after a guilty plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 896 (DeVaughn).)

The parties agree that Hamburgs motion was in actuality a motion to suppress under the Fifth Amendment rather than a section 1538.5 motion, and Hamburg therefore cannot, and could not, appeal from the denial of his suppression motion. Thus, Hamburg was improperly induced to plead no contest by a promise that he could appeal a nonappealable issue, and Hamburg should be afforded an opportunity to withdraw his plea. (DeVaughn, supra, 18 Cal.3d at pp. 893, 896 [although defendants could not challenge on appeal that their statements were involuntarily induced, they could attack the validity of their plea on the ground the pleas were improperly induced because the trial court had no power to bargain with defendants to preserve for appeal the issues of involuntariness].)

III. DISPOSITION
The judgment is reversed and remanded with instructions to permit Hamburg a reasonable opportunity to withdraw his no contest plea if he so elects, and to undertake such further proceedings as may be necessary.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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^[1] All statutory references are to the Penal Code.